Suppression Issues in Connecticut
A. Searches in General
1. Understanding Your Rights
The Fourth Amendment to the United States Constitution, and Article 1 subsection 7 of the Connecticut Constitution, prohibit unreasonable searches and seizures. Article 1 subsection 7 of Connecticut’s Constitution mirrors the Fourth Amendment of the United States Constitution and reads as follows:
The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures; and no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation.
Conn. Const. Art. 1, § 7. Security from searches and seizures
The touchstone of Fourth Amendment analysis is whether a person has a “'constitutionally protected reasonable expectation of privacy.’" California v. Ciraolo, 476 U.S. 207, 211 (1986) quoting Katz v. United States, 389 U.S. 347, 360 (1967). Where a defendant can show an actual subjective expectation of privacy in the place searched (or object seized) and that this subjective expectation of privacy is one that society is prepared to recognize as reasonable, the Government must have a warrant supported by probable cause before affecting the search. Conversely, without a reasonable expectation of privacy, a search performed by government officials or a public employer will not violate the Fourth Amendment, regardless of the search's nature and scope.
This provision is significant to a criminal defendant because evidence that is “unreasonably” seized may be inadmissible in the case against him. As nearly every prosecution involving drugs involves the admission of those drugs into evidence, this constitutional protection and related “exclusionary rule” is of paramount importance to the defendant facing drug charges because, as a practical matter, if the introduction of narcotics can be prevented by establishing the illegality of the seizure or search which turned up evidence, the prosecution will be defeated.
The initial burden of going forward on a pretrial motion to suppress is on the defendant, but the burden of proof is on the State on the most of the issues governing whether evidence obtained by the State should be suppressed. The Connecticut Practice Book allows the defendant to file a motion to suppress potential testimony or other evidence when suppression is required under the Constitution or laws of the United States or the State of Connecticut. Under the Practice Book and section 54-33f of the Connecticut General Statutes the defendant can also file a motion to suppress evidence obtained without a warrant where a warrant was required.
3. Warrants: Relevant Statutes
Conn. Gen. Stat. § 54-33a. Issuance of search warrant
(a) As used in sections 54-33a to 54-33g, inclusive, “property” includes, without limitation, documents, books, papers, films, recordings and any other tangible thing.
(b) Upon complaint on oath by any state's attorney or assistant state's attorney or by any two credible persons, to any judge of the Superior Court or judge trial referee, that such state's attorney or assistant state's attorney or such persons have probable cause to believe that any property (1) possessed, controlled, designed or intended for use or which is or has been used or which may be used as the means of committing any criminal offense; or (2) which was stolen or embezzled; or (3) which constitutes evidence of an offense, or that a particular person participated in the commission of an offense, is within or upon any place, thing or person, such judge or judge trial referee, except as provided in section 54-33j, may issue a warrant commanding a proper officer to enter into or upon such place or thing, search the same or the person and take into such officer's custody all such property named in the warrant.
(c) A warrant may issue only on affidavit sworn to by the complainant or complainants before the judge or judge trial referee and establishing the grounds for issuing the warrant, which affidavit shall be part of the arrest file. If the judge or judge trial referee is satisfied that grounds for the application exist or that there is probable cause to believe that they exist, the judge or judge trial referee shall issue a warrant identifying the property and naming or describing the person, place or thing to be searched. The warrant shall be directed to any police officer of a regularly organized police department or any state police officer, to an inspector in the Division of Criminal Justice or to a conservation officer, special conservation officer or patrolman acting pursuant to section 26-6. The warrant shall state the date and time of its issuance and the grounds or probable cause for its issuance and shall command the officer to search within a reasonable time the person, place or thing named, for the property specified. The inadvertent failure of the issuing judge or judge trial referee to state on the warrant the time of its issuance shall not in and of itself invalidate the warrant.
Conn. Gen. Stat. § 54-33b. Search of person
The officer serving a search warrant may, if such officer has reason to believe that any of the property described in the warrant is concealed in the garments of any person in or upon the place or thing to be searched, search the person for the purpose of seizing the same. When the person to be searched is a woman, the search shall be made by a policewoman or other woman assisting in the service of the warrant, or by a woman designated by the judge or judge trial referee issuing the warrant.
Conn. Gen. Stat. § 54-33c. Application for warrant. Execution and return of warrant. Copy of affidavit to be given to owner, occupant or person named in warrant; exceptions. Disclosure of affidavit limited by prosecuting attorney, when
(a) The applicant for the search warrant shall file the application for the warrant and all affidavits upon which the warrant is based with the clerk of the court for the geographical area within which any person who may be arrested in connection with or subsequent to the execution of the search warrant would be presented with the return of the warrant. The warrant shall be executed within ten days and returned with reasonable promptness consistent with due process of law and shall be accompanied by a written inventory of all property seized. A copy of such warrant shall be given to the owner or occupant of the dwelling, structure, motor vehicle or place designated therein, or the person named therein. Within forty-eight hours of such search, a copy of the application for the warrant and a copy of all affidavits upon which the warrant is based shall be given to such owner, occupant or person. The judge or judge trial referee may, by order, dispense with the requirement of giving a copy of the affidavits to such owner, occupant or person at such time if the applicant for the warrant files a detailed affidavit with the judge or judge trial referee which demonstrates to the judge or judge trial referee that (1) the personal safety of a confidential informant would be jeopardized by the giving of a copy of the affidavits at such time, or (2) the search is part of a continuing investigation which would be adversely affected by the giving of a copy of the affidavits at such time, or (3) the giving of such affidavits at such time would require disclosure of information or material prohibited from being disclosed by chapter 959a. If the judge or judge trial referee dispenses with the requirement of giving a copy of the affidavits at such time, such order shall not affect the right of such owner, occupant or person to obtain such copy at any subsequent time. No such order shall limit the disclosure of such affidavits to the attorney for a person arrested in connection with or subsequent to the execution of a search warrant unless, upon motion of the prosecuting authority within two weeks of such person's arraignment, the court finds that the state's interest in continuing nondisclosure substantially outweighs the defendant's right to disclosure.
(b) Any order dispensing with the requirement of giving a copy of the warrant application and accompanying affidavits to such owner, occupant or person within forty-eight hours shall be for a specific period of time, not to exceed two weeks beyond the date the warrant is executed. Within that time period the prosecuting authority may seek an extension of such period. Upon the execution and return of the warrant, affidavits which have been the subject of such an order shall remain in the custody of the clerk's office in a secure location apart from the remainder of the court file.
Conn. Gen. Stat. § 54-33d. Interference with search
Any person who forcibly assaults, resists, opposes, impedes, intimidates or interferes with any person authorized to serve or execute search warrants or to make searches and seizures while engaged in the performance of his duties with regard thereto or on account of the performance of such duties, shall be fined not more than one thousand dollars or imprisoned not more than one year or both; and any person who in committing any violation of this section uses any deadly or dangerous weapon shall be fined not more than ten thousand dollars or imprisoned not more than ten years or both.
Conn. Gen. Stat. § 54-33e. Destruction of property
Any person who, before, during or after seizure of any property by any police officer authorized to make searches and seizures, in order to prevent the seizure or securing of any property named in the warrant by such police officer, breaks, destroys or removes or causes the breaking, destruction or removal of the same, shall be fined not more than one thousand dollars or imprisoned not more than one year or both.
- B. In Your Home
In order to search your home, the police need a warrant supported by probable cause and the warrant must be signed by a neutral and detached magistrate (if there are no exigent circumstances such as a fleeing felon). See State v. Browne, 104 Conn. App. 314, 340-41 (2007).
Also, there is no “good faith exception” to the warrant requirement in Connecticut.
Unlike federal courts, the Connecticut state constitution does not allow for a good faith exception to the warrant requirement. If a warrant is facially defective, the evidence cannot be admitted under the “good faith” exception. State v. Marsala, 216 Conn. 150 (1990).
If the Officers think someone else is in the house that poses a danger, and they can also look for weapons in the areas immediately adjoining where the defendant is arrested, even if not authorized by the warrant. In State v. Williams, 110 Conn. App. 329 (2008), the Connecticut Appellate court held that where officers possess a reasonable belief based on specific and articulable facts that areas in the house to be swept harbor an individual posing a danger to those at the arrest scene, the officers may engage in a limited search for such individual. The search is limited to those areas where an individual can be found (i.e. cannot be in a drawer). They can also search for weapons in areas immediately adjoining where the defendant is arrested, even if he is already handcuffed. This exception is important because if the officer is lawfully present, anything they can observe in plain view which is immediately recognizable as contraband (i.e. drugs or weapons) can be seized lawfully.
C. In Someone Else’s Home
If you are arrested as a result of the search by warrant in someone else’s home, whether or not you can suppress the search depends on your “expectation of privacy,” or whether or not it is reasonable for you to expect that the area searched was to be private. Whether or not we can challenge the search will depend on something called “standing,” which means whether or not you are in the legal position to challenge the search. If you have an expectation of privacy for the area searched then you may in fact have standing to challenge the search.
The cases on whether or not a person has standing to challenge a search are many, and we will provide a few highlights for you. In State v. Riddick, 207 Conn. 323 (1988), a son or a daughter has a reasonable expectation of privacy in their parent’s home if they’re staying there temporarily or living there. This also applies to grandchildren. In the Supreme Court case Minnesosta v. Olson, 495 U.S. 191 (1990), an overnight guest who did not have a key and was never alone in the home was nonetheless held to have standing to challenge his warrantless arrest. In another Supreme Court case, Minnesota v. Carter, 525 U.S. 83 (1998), the Supreme Court held that where individuals went to an apartment for the sole purpose of packaging cocaine in exchange for some of the product, but only spent two hours there and had never been to the apartment before, did not standing to challenge a search.
- D. In Your Car
1. The Search Incident to an Arrest
When a police officer has made a lawful custodial arrest of the occupants of an automobile he may, as a contemporaneous incident of that arrest, search the passenger compartment of the vehicle. This is called a search incident to arrest. The officer may also examine the contents of any container found within the passenger compartment and such “container” (i.e. an object capable of holding another object) may be searched whether it is open or closed. New York v. Belton, 453 U.S. 454 (1981); State v. Delossantos, 211 Conn. 258 (1989). Furthermore, when the hatchback area of the car can be reached from the interior, passenger, area, it can also be searched incident to arrest. Delossantos, 211 Conn. at 257. This is important because anything an officer finds in plain view while looking for a weapon is admissible in court, including drugs.
2. The “Terry” Stop When in a Car
Police officers may also conduct an investigatory frisk of the passengers in an automobile if they believe that a passenger in the automobile possesses a weapon. When a reasonable and articulable suspicion exists, the detaining officer may conduct an investigative stop of the suspect to confirm or to dispel his suspicions. Terry v. Ohio, 392 U.S. 1 (1968); State v. Federici, 179 Conn. 46 (1979); State v. Acklin, 171 Conn. 105 (1976). During a “Terry stop,” an officer may search the automobile’s passenger compartment for weapons, limited to areas where the weapon might be hidden, if he or she reasonably believes the suspect is potentially dangerous. Michigan v. Long, 463 U.S. 1032 (1983). In Connecticut, our Appellate court has defined what “reasonable and articulable suspicion means: “What constitutes a reasonable and articulable suspicion depends on the totality of the circumstances....The determination of whether a specific set of circumstances provides a police officer with a reasonable and articulable suspicion of criminal activity is a question of fact for the trial court and is subject to limited appellate review.” (Citations omitted.) State v. Anderson, 24 Conn. App. 438, cert. denied, 219 Conn. 903 (1991).
3. The “Automobile” Exception
Police officers may conduct a search of the entire automobile, including the truck and containers in the car, if they have probable cause to believe that contraband can be found in the car. This is commonly known as the automobile exception. The justification for the automobile exception is twofold: (1) the inherent mobility of an automobile creates exigent circumstances (i.e. a person can drive away quickly and evidence may be destroyed); and (2) the expectation of privacy with respect to one's automobile is significantly less than that relating to one's home or office. State v. Wilson, 111 Conn. App. 614 (2008).
Probable cause to search exists if (1) there is probable cause to believe that the particular items sought to be seized are connected with criminal activity or will assist in a particular apprehension or conviction and (2) there is probable cause to believe that the items sought to be seized will be found in the place to be searched.” Wilson at 624. If an officer has probable cause, they can also search the trunk of the automobile. State v. Kuskowski, 200 Conn. 82 (1986).
4. The Inventory Search
Officers can search the automobile pursuant to the inventory search as well. Our Appellate court in State v. Whealton, 108 Conn. App. 172 (2008) has further explained the inventory search of a car: “[the inventory search is] a well-defined exception to the warrant requirement....In the performance of their community caretaking functions, the police are frequently obliged to take automobiles into their custody....A standardized procedure for making a list or inventory as soon as reasonable after reaching the stationhouse not only deters false claims but also inhibits theft or careless handling of articles taken from the arrested person.” Whealton at 179.
As a general rule, police can search can search anything that you consents to being searched. Of course, if you did not consent, or if you were forced to consent to the search, then there are grounds to challenge the search.
E. In Someone Else’s Car
Whenever you are in someone else’s automobile, you can challenge the initial stop of the automobile, but you cannot challenge the search of the automobile, unless you can establish standing. The U.S. Supreme Court, in Brendlin v. California, 551 U.S. 249 (2007), found passengers can challenge the initial stop of an automobile because they are seized within the meaning of the 4th amendment of the United States Constitution.
However, assuming that there are no problems with the initial stop, it is difficult to challenge the search of the automobile because the defendant would have no reasonable expectation of privacy in another’s automobile, and therefore, would not have standing to challenge the illegality of the search. Therefore, a passenger generally cannot challenge the search of car in which he or she is the passenger. The Connecticut Appellate court found exactly that in State v. Kimble, 106 Conn. App. 572 (2008): “Passengers in an automobile, neither claiming nor demonstrating a possessory interest in the automobile, generally are regarded as lacking a reasonable expectation of privacy in the automobile.” In other words, if you do not own the car or claim to own that car at the time of the search, then you do not have a reasonable expectation of privacy and therefore cannot challenge the search. However, if you are the owner of the car and a passenger (someone else is driving), then you might have standing to challenge the search of the automobile.
F. Searches by Drug Sniffing Dogs
The State and Federal Constitutions mandate that unless there is an exception (i.e. inventory search or search incident to an arrest), the police need a warrant to conduct a search. The Connecticut Courts have declined to determine whether or not drug dog searches are “searches” for purposes of the Fourth Amendment, or other words, whether searching with a drug dog requires a warrant.
Federal Courts, on the other hand, have addressed this issue and have come to a variety of conclusions: that a search by a drug dog is sometimes and sometimes not a search that requires a warrant. The Federal Courts have adopted a case-by-case analysis and make the determination of whether a search by a drug dog is a Fourth Amendment search based on the totality of the circumstances of the arrest. The Connecticut Courts have also adopted this standard, as evidenced by the decision by our Supreme Court in State v. Waz, 240 Conn. 365 (1997).
So far, the Connecticut Courts have approached the issue of drug dog searches in two contexts: searches of a vehicle and searches of mail. In State v. Waz, 240 Conn. 365 (1997), the court held that “the external, olfactory examination of his parcel by a trained narcotics detection dog” does not reach the level of protection required (i.e. the procurement of a warrant) if the police were to open the parcel of mail. Waz at 348. In that case, the police had reasonable and articulable suspicion that the parcel of mail contained narcotics. Rather than open the package (which would have required a warrant), the police used a drug dog to investigate. The court ultimately reasoned that the search by the drug dog was “minimally, if at all, intrusive of the defendant's legitimate privacy rights, and the officer conducting the canine sniff had a reasonable and articulable suspicion that the parcel contained illegal drugs,” and therefore, the search did not require a warrant. This holding concerning the mail was predicated on the seminal federal case involving trained narcotics detection dogs, U.S. v. Place, 462 U.S. 696 (1983). In that case, the United States Supreme Court held that “a canine sniff of luggage briefly detained upon reasonable suspicion in a public airport ‘[does] not constitute a “search” within the meaning of the Fourth Amendment.’” State v. Waz, 240 Conn. 365, 377 (1997) quoting U.S. v. Place, 462 U.S. 696, 703 (1983).
As for searches of motor vehicles, the Connecticut Supreme Court addressed that issue in State v. Torres, 230 Conn. 372 (1994). It is important to note that unlike the Waz decision, the Court in Torres did not address the issue of whether or not the search of a motor vehicle by a drug dog is a search requiring a warrant. In Waz, the Court found a search of mail was not a search for purposes of the Fourth Amendment. The Court is Torres never reach that issue because it was “not necessary to the determination of this appeal that we decide whether the circumstances of this canine sniff constituted such a search.” Torres at 381. The Court reasoned that this issue need not be address “because: (1) we have found no case that has held such a sniff of an automobile, properly stopped by the police, to a standard more demanding than reasonable and articulable suspicion; (2) the defendant in oral argument in this court conceded that standard to be applicable to the facts of this case; and (3) the canine sniff of the defendant's automobile at issue here was based on reasonable and articulable suspicion.” Id. at 381-82.
In summary, the Torres court found that in the situation in which the police had reasonable and articulable suspicion that the motor vehicle contained drugs (here, based on a tip from a reliable confidential informant), the search of the vehicle by a drug dog did not require a warrant and was constitutional. Id. The United States Supreme Court addressed a similar issue in Illinois v. Caballes, 543 U.S. 405 (2005). In Caballes, an individual was legally stopped for a traffic violation. While the officer was speaking with the defendant, another officer arrived on scene with a drug dog and search the exterior of the vehicle. The drug dog alerted to the presence of a controlled substance and the defendant was subsequently arrested. The Supreme Court held that “the use of a well-trained narcotics-detection dog-one that ‘does not expose noncontraband items that otherwise would remain hidden from public view,’ during a lawful traffic stop, generally does not implicate legitimate privacy interests. In this case, the dog sniff was performed on the exterior of respondent's car while he was lawfully seized for a traffic violation. Any intrusion on respondent's privacy expectations does not rise to the level of a constitutionally cognizable infringement.” Illinois v. Caballes, 543 U.S. 405, 409 (2005) (internal citations omitted). The Court further held that because there was no cognizable infringement, the search did not require a warrant.
G. In School
1. General Rules Applying to School Searches
In general, school officials are subject to the Fourth Amendment, meaning in order to search a student, it must be reasonable. In New Jersey v. T.L.O., 469 U.S. 325 (1985), the United States Supreme Court outlined the rules applying to school officials conducting searches of students' bodies and personal effects. Although court held that school officials, as government agents, are subject to the Fourth Amendment, they do not have to obtain a warrant before conducting such searches. The court found that school officials do have to meet the following standards in assessing whether a search of a student's person or effects is reasonable and, therefore, permissible: (1) the search must be reasonable at its inception, which means when school officials have “reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school”; (2) the search's scope must be reasonably related to the purpose of the search and not excessively intrusive. The determination of whether or not a search is excessively intrusive considers the age and sex of the students as well as the nature of the infraction.
In summary, a school official can search a student without a warrant if the following two conditions are met: (1) the official has reasonable grounds at the start of the search that the student has violated or is violating the law or school policy; and (2) the scope of the search is related to what the official is searching for.
2. School Searches: Relevant Statutes
Conn. Gen. Stat. § 54-33n. Search of school lockers and property.
All local and regional boards of education and all private elementary and secondary schools may authorize the search by school or law enforcement officials of lockers and other school property available for use by students for the presence of weapons, contraband or the fruits of a crime if (1) the search is justified at its inception and (2) the search as actually conducted is reasonably related in scope to the circumstances which justified the interference in the first place. A search is justified at its inception when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school. A search is reasonably related in scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.
Conn. Gen. Stat. § 10-154a. Professional communications between teacher or nurse and student. Surrender of physical evidence obtained from students.
(a) As used in this section: (1) “School” means a public school as defined in section 10-183b or a private elementary or secondary school attendance at which meets the requirements of section 10-184; (2) a “professional employee” means a person employed by a school who (A) holds a certificate from the State Board of Education, (B) is a member of a faculty where certification is not required, (C) is an administration officer of a school, or (D) is a registered nurse employed by or assigned to a school; (3) a “student” is a person enrolled in a school; (4) a “professional communication” is any communication made privately and in confidence by a student to a professional employee of such student's school in the course of the latter's employment.
(b) Any such professional employee shall not be required to disclose any information acquired through a professional communication with a student, when such information concerns alcohol or drug abuse or any alcoholic or drug problem of such student but if such employee obtains physical evidence from such student indicating that a crime has been or is being committed by such student, such employee shall be required to turn such evidence over to school administrators or law enforcement officials within two school days after receipt of such physical evidence, provided if such evidence is obtained less than two days before a school vacation or the end of a school year, such evidence shall be turned over within two calendar days after receipt thereof, excluding Saturdays, Sundays and holidays, and provided further in no such case shall such employee be required to disclose the name of the student from whom he obtained such evidence and such employee shall be immune from arrest and prosecution for the possession of such evidence obtained from such student.
(c) Any physical evidence surrendered to a school administration pursuant to subsection (b) of this section shall be turned over by such school administrator to the Commissioner of Consumer Protection or the appropriate law enforcement agency within three school days after receipt of such physical evidence, for its proper disposition, provided if such evidence is obtained less than three days before a school vacation or the end of a school year, such evidence shall be turned over within three calendar days from receipt thereof, excluding Saturdays, Sundays and holidays.
(d) Any such professional employee who, in good faith, discloses or does not disclose, such professional communication, shall be immune from any liability, civil or criminal, which might otherwise be incurred or imposed, and shall have the same immunity with respect to any judicial proceeding which results from such disclosure.
H. On Your Person
When officers have probable cause to make an arrest, they can lawfully search the person pursuant to the search incident to arrest exception to the warrant requirement. State v. Dukes, 209 Conn. 98 (1988). An officer can stop a suspect if they have a reasonable and articulable suspicion that the individual has committed or is about to commit a crime. Trine, 236 Conn. at 223. When determining if a police officer has a reasonable and articulable suspicion, the Court applies a “totality of the circumstances test.” State v. Clark, 255 Conn. 268 (2001). The Court must determine whether the detaining officers had a particularized and objective reason for stopping the person suspected of criminal activity. Clark, 255 Conn. at 282-83. Furthermore, if an officer reasonably believes that the detained individual might be armed and dangerous, the officer may undertake a pat-down search to discover weapons. Terry v. Ohio, 392 U.S. 1 (1968); Trine, 236 Conn. at 223-224. See also State v. Days, 89 Conn. App. 789 (2005) (where officers conduct a surveillance in an area known for narcotics activity and observed what appeared to be a drug transaction, they had reasonable and articulable suspicion to stop the suspect, even if they did not see drugs).
When individuals are stopped for suspected narcotics activity, it is reasonable for officers to conclude that the subjects might be armed and dangerous, because narcotics activity is the type of activity that can result in sudden violence. Officers do not need to be positive that a suspect has a weapon to conduct a lawful pat down; they are allowed to make reasonable inferences based on the surrounding circumstances and their prior experiences. Clark at 284-285. Furthermore, there is a well-established connection between drugs and firearms. State v. Cooper, 227 Conn. 417 (1993).
Under Terry, an officer is allowed to conduct an open-handed pat down of the suspect to check for weapons. If an officer has to manipulate the object to determine what it is, he has exceeded the lawful scope of a Terry pat down. Minnesota v. Dickerson, 508 U.S. 366 (1993); Trine at 233. If, however, he immediately recognizes the object as a weapon or contraband without manipulation, that’s considered the “plain feel” doctrine and is a lawful search and seizure if he removes it from the defendant’s person.
I. At Work
1. Searches at Work Generally
In cases involving an employee's claim of a violation of the Fourth Amendment or a similar state constitutional provision, Connecticut courts have held that, a person asserting such a violation is required to establish both that he or she had an actual subjective expectation of privacy in the place searched and that this subjective expectation of privacy is one that society is prepared to recognize as reasonable. This approach follows the U.S. Supreme Court’s analysis of Smith v. Maryland, 442 U.S. 735 (1979). Whether a reasonable expectation of privacy exists, is a determination that must be made on a case-by-case basis. Because the reasonableness of a search or seizure will depend on the facts and circumstances of each individual case, forming clear rules as to the type of governmental intrusion that is permissible, or impermissible is difficult.
In determining whether a reasonable expectation of privacy existed Connecticut courts have explained that some of the factors to be considered are: (1) the use made of the premises searched; (2) the normal precautions taken to maintain privacy; and (3) the property interests of the objecting party in the area of the search. See State v. Roseboro, 1990 WL 277237 (Conn. Super. Ct. 1990), judgment aff'd on other grounds, 221 Conn. 430 (1992) (unreported opinion). Although ownership of the area, or object, of a search is relevant in determining whether an individual's expectations of privacy are reasonable, ownership is not necessary to finding that a defendant maintained an expectation of privacy, nor does it provide an automatic showing of a reasonable expectation of privacy.
2. Searches Based on Consent Forms
It is becoming common practice for employers to issue privacy waivers or consent forms to employees. These forms typically make clear that employees do not maintain an expectation of privacy in specified places or functions within the business. Common examples are forms waiving an employee’s expectation of privacy in the business’ files, phone and internet access, or certain facilities provided by the employer such as a lockers. Although enforceable in certain circumstances courts will scrutinize these waivers of constitutionally guaranteed rights very carefully.
When the police or an employer rely upon such a consent form as the basis for their warrantless search, they have no more authority than they have been given by the consent. Courts will take into account any express or implied limitations or qualifications attending that consent which establish the permissible scope of the search in terms of such matters as time, duration, area or intensity. The State bears the burden affirmatively to establish that consent was voluntary and the consent shall not be lightly inferred. See State v. Roseboro, 1990 WL 277237 (Conn. Super. 1990) (unreported); See also Brown-Criscuolo v. Wolfe, 601 F.Supp.2d 441, 243 Ed. Law Rep. 245.
3. Third Party Consent: Introduction
An additional concern affecting Fourth Amendment protection is consent. An individual is deemed to have waived his constitutional protections, thus receiving no protection, when he consents to a governmental search. Of particular concern in employment contexts is the ability of a person other than the defendant to appropriately authorize a search. Courts have expressed contrary views on what gives a “third party” the authority to consent to a search of another’s property, and while no one approach is used exclusively in these cases some general considerations can be explained.
The Supreme Court has abandoned the notion expressed in Stoner v. California that a person may waive his Fourth Amendment rights only "directly or through an agent," and the agency test appears to have retained some of its force in the employee consent cases because its relevance is more apparent in such a context. While an agency type of analysis may often be useful in these cases, this approach is certainly not used exclusively. At least some courts have also utilized, in appropriate circumstances, other tests which are more commonly used in other third party consent situations, such as the “assumption of risk” and “apparent authority” formulae. The “assumption of risk” view considers that certain risks are assumed when there is joint use of or access to certain property because of a familial or real property relationship. Logically this extends to the employment context because an employer runs some necessary risks that his employees will permit a search--even if such permission is not strictly within their authority as an agent of the employer. The “apparent authority” approach views a search to be constitutional if government officials receive consent from a third party that they “reasonably believe” has authority to do so. This is an objective test that looks only to whether the government’s reliance on such consent was reasonable, and is not concerned with whether the consenting party actually had such authority.
These rests invariably consider the relationship between the consenting party to the nature and scope of the consent being given. As a result the relationship between the defendant employee and consenting employee will be a crucial element.
4. Third Party Consent: Consent By Employer
In the case where the consenting party is the defendants employer or superior courts may infer more authority because of the supervisory relationship. Two factors have been considered important by the courts in resolving this issue: (i) the extent to which the particular area searched may be said to have been set aside for the personal use of the employee; and (ii) the extent to which the search was prompted by a unique or special need of the employer to maintain close scrutiny of employees. State v. Roseboro, 1990 WL 277237 (Conn. Super. 1990) (unreported).
With respect to the nature of the particular area searched at the place of employment, it is clear that an employer or supervisor may consent to a search of those areas that are not set aside for exclusive use by a particular employee. It is also clear that an employer’s authority to consent is limited to areas relating to the business, an employer does not have authority to consent to a police search of an employee's person.
There are other circumstances in which, because of the nature of the employment, it must be concluded that the employees have assumed the risk of a closer degree of scrutiny than would be proper in the employer-employee context generally. As a general proposition that employers should not be able to consent to a search of lockers on the business premises which have been set aside for the use of employees in storing their personal effects, and certainly not employees' on-site sleeping quarters. However, the nature of a person’s employment may expand an employer’s authority to authorize a search. For example, given a police department's "substantial interest in assuring not only the appearance but the actuality of police integrity," a different conclusion may be justified as to the search of the lockers of police officers. United States v. Speights, 413 F. Supp. 1221 (D.N.J.1976); Shaffer v. Field, 339 F. Supp. 997 (C.D.Cal.1972), aff'd, 484 F.2d 1196 (9th Cir.1973); People v. Neal, 109 Ill.2d 216, (1985). The same may be said of persons who are employed in places with special security requirements, such as jail guards and persons working in the U.S. Mint.
5. Third Party Consent: Consent By Employee
Generally, it may be said that courts attempt to assess and evaluate the employment responsibilities of the employee as they relate to the nature of the search being challenged, which makes sense both in terms of “agency” and “assumption of risk” theories of consent. It is significant, for example, whether the employer has absented himself for some period of time and left the employee in charge of the place searched.
The fact that the employee's duties relate to the granting of access to a certain place or to certain objects may make it easier to find that the employee had authority to allow a search of that place or those objects. Such would be the case, for example, where consent to search a warehouse is given by an employee who was entrusted with a key to the warehouse and regularly worked therein and thus had the premises under his "immediate and complete control." Similarly, where a particular corporate employee was vested with complete supervision of the corporate books, there would be no "more proper individual" from whom to obtain consent to examine those books. By contrast, it might well be concluded that a secretary-receptionist could not consent to a police search of her boss's office during his absence, for her duties concerning access to that place would appear to be limited to ushering in persons with appointments.
Although it is difficult to generalize, the courts appear to be influenced by the "status" of the employee. There seems to be a greater willingness to find effective consent when it is given by a person with the title of office manager, foreman, or caretaker than when the consent comes from a clerk, secretary, or babysitter. It also appears, although again there is seldom explicit recognition of this in the cases, that the private nature of the place searched counts for something. An employee's consent, it would seem, is more likely to be found sufficient for the search of a warehouse than it is for the search of a private office or residential premises. See State v. Griswold, 67 Conn. 290 (1896).
This is not to say, however, that the “apparent authority” doctrine will not be utilized in this area. Because "the circumstances as they objectively appear to the police at the time of the search are all to be considered" in determining if the police "could have reasonably believed the employee had the authority" he purported to have, mistakes made by police in determining who has proper authority to consent to a search may be deemed irrelevant by a court. United States v. Grigsby, 367 F. Supp. 900 (E.D. Ky. 1973).
6. Government or State Agency As Employer
The constitutional provisions discussed above only protect individuals from unreasonable searches and seizures performed by the government. This typically means the police. As an example, the average employee receives no protection from his/her boss searching through his/her desk; finding drugs; and subsequently reporting him to the police. However, governmental employees (state or federal) will receive constitutional protection of the reasonable expectation of privacy in an identical situation. This protection extends not only to individuals with an obvious employment relationship to government entities (such as legislative employees; judicial employees; and police officers), but also to employees of state agencies such as the department of education (teachers) and the department of transportation (bus drivers).
However, Connecticut courts have held that special needs of public employers may allow them to dispense with probable cause and warrant requirements when conducting workplace searches related to investigations of work-related misconduct. A warrantless search by a public employer may be reasonable when measures adopted for the search are reasonably related to objectives of search, and not excessively intrusive in light of its purpose. See Brown-Criscuolo v. Wolfe, 601 F. Supp. 2d 441, 243 Ed. Law Rep. 245. Even if a government employee has a reasonable expectation of privacy in the workplace, "[a]n investigatory search for evidence of suspected work-related employee misfeasance will be constitutionally 'reasonable' if it is 'justified at its inception' and of appropriate scope.' Leventhal, 266 F.3d at 75 quoting O'Connor, 480 U.S. at 726.
7. At Your Office
As with any other search or seizure by government officials, a defendant seeking suppression must have had a reasonable expectation of privacy in the area or object of the search/seizure. That is, a defendant must establish both that he has exhibited an actual subjective expectation of privacy, and, that his expectation is one society recognizes as reasonable.
When making the determination of whether or not an employee held an expectation of privacy in the area searched or item seized Courts look to the following factors: (1) the specific area that was searched or the property that was seized; and (2) the specific form of the intrusion by governmental agents on the employee's privacy.
Areas that an employee has complete control over suggest a greater expectation of privacy. Such as an employees desk or personal computer. A reasonable expectation of privacy is less likely to be found in areas that are shared by employees, such as break rooms or storage areas. Courts are unlikely to find a reasonable expectation of privacy in areas of the business that are open to the public such as lobbies, waiting areas, and public restrooms. Again, no clear lines can be drawn because the determination of whether an employee retained a reasonable expectation of privacy will depend on the particular facts and circumstances of each case.
8. At Someone Else’s Office
While working at someone else’s place of employment, an employee will likely be deemed to have a reduced expectation of privacy. This is because the off site employee usually has only a very temporary relationship with the work area, and likely does not have exclusive control of the area that he is working in. However, the employee will usually retain a reasonable expectation of privacy in items that he beings with him to a job site; which he owns; or that are under his complete control. Some common examples are: brief cases, toolboxes, or the employee’s car.
The nature of the off-site work place may also affect a defendant’s expectation of privacy. For example, because the Fourth Amendment provides the home its highest level of protection, off-site locations that are in a home or home-office (even though not the employees home) may provide the off-site employee with a reasonable expectation of privacy.
In an action in which a baby-sitter and other parties were charged with possession of drugs found during a police search of the apartment in which the baby-sitter was taking care of the residents' child, the court, in State v. Anonymous (1984-1), 40 Conn. Supp. 20 (Super. Ct. 1984), held that the baby-sitter had a reasonable expectation of privacy in the apartment under the Fourth Amendment and Conn. Const. Art. I, § 7, although she did not live there, so that the baby-sitter had standing to contest the lawfulness of the search. As the caretaker of the child, the court reasoned, the baby-sitter undoubtedly had a socially acceptable expectation of privacy. A baby-sitter had an obligation, the court emphasized, to protect her charge from harm. Of necessity, the court reasoned, this obligation entitled her to exclude others from the premises. Accordingly, the court granted the baby-sitter's motion to suppress evidence discovered during the search.
J. While On Probation
A majority of the case law in Connecticut states that the exclusionary rule does not apply to revocation of probationary hearings where the probation officer is the person who conducted the search. In other words, the fruits of an illegal search cannot be suppressed if the probation officer is the one who did the search. Additionally, the court can make it a condition of probation to force the probationer to submit to searches on their person, in their home, automobile, when their probation officer has a reasonable suspicion to do so. State v. Moore, 112 Conn. App. 569 (2009).
However, in two Connecticut Supreme Court cases, State v. Foster, 258 Conn. 501 (2001) and State v. Jacobs, 229 Conn. 385 (1994), the court specifically dodged the question of whether a patently defective warrant or serious police misconduct would justify the application of the exclusionary rule in a revocation of probation proceeding.
K. Strip Searches
1. Strip Searches Generally
Connecticut Statutes authorize strip searches in very limited circumstances, under very narrow conditions. A “strip search,” as defined by Conn. Gen. Stat. § 54-33k, means having your clothes removed, either voluntarily or by a “peace officer,” to permit a visual inspection of the body. If you are arrested for a misdemeanor or a motor vehicle violation, you are not to be strip searched unless there is “reasonable belief” that you are concealing a weapon or contraband. Any body cavity search must be conducted pursuant to a warrant, under sanitary conditions, and in the prescence of a person licensed to practice medicine. If the police determine that you are to be strip searched, it must be conducted by a member of the same sex out of eye-shot by anyone else not conducting the search. Furthermore, an officer must obtain written permission from his supervisor to conduct the search and must also prepare a detailed report. The strip search statute does provide protections for the accused, in that the civil remedies are reserved if the search is unfounded. And finally, these rules do not apply to those that are incarcerated.
2. Strip Searches: Relevant Statutes
Conn. Gen. Stat. § 54-33k. “Strip search” defined
For the purposes of this section and section 54-33l, “strip search” means having an arrested person remove or arrange some or all of his or her clothing or, if an arrested person refuses to remove or arrange his or her clothing, having a peace officer or employee of the police department remove or arrange the clothing of the arrested person so as to permit a visual inspection of the genitals, buttocks, anus, female breasts or undergarments used to clothe said anatomical parts of the body.
Conn. Gen. Stat. § 54-33l. Strip searches. Procedure
(a) No person arrested for a motor vehicle violation or a misdemeanor shall be strip searched unless there is reasonable belief that the individual is concealing a weapon, a controlled substance or contraband.
(b) No search of any body cavity other than the mouth shall be conducted without a search warrant. Any warrant authorizing a body cavity search shall specify that the search is required to be performed under sanitary conditions and conducted either by or under the supervision of a person licensed to practice medicine in accordance with chapter 370.
(c) All strip searches shall be performed by a person of the same sex as the arrested person and on premises where the search cannot be observed by persons not physically conducting the search or not absolutely necessary to conduct the search.
(d) Any peace officer or employee of a police department conducting a strip search shall (1) obtain the written permission of the police chief or an agent thereof designated for the purposes of authorizing a strip search in accordance with this section and section 54-33k and (2) prepare a report of the strip search. The report shall include the written authorization required by subdivision (1) of this subsection, the name of the person subjected to the search, the name of any person conducting the search and the time, date and place of the search. A copy of the report shall be provided to the person subjected to the search.
(e) Nothing in this section shall preclude prosecution of a peace officer or employee under any other provision of the general statutes.
(f) Nothing in this section shall be construed as limiting any statutory or common law rights of any person for purposes of any civil action or injunctive relief.
(g) The provisions of this section and section 54-33k shall not apply when the person is remanded to a correctional institution pursuant to a court order.